Richello v. Wilkinson

Decision Date01 November 2021
Docket NumberA21A0679
PartiesRICHELLO v. WILKINSON et al.
CourtUnited States Court of Appeals (Georgia)

DOYLE P. J., REESE and BROWN, JJ.

DOYLE Presiding Judge.

This case comes to us from the Superior Court of White County ("the superior court") after it awarded permanent legal and physical custody of J. R., D. R., and A. R. to Denise and Nelson Wilkinson - the children's maternal grandparents -following the death of their mother during Connecticut divorce proceedings from Joseph Richello, the children's father. The father appeals, arguing that: an emergency ex parte order awarding temporary custody to the grandparents was void because it was signed by the judge before the petition seeking such relief was filed in the Clerk's office; the superior court lacked subject matter jurisdiction over what was in essence a dependency action the grandparents never served the father; the superior court erred by denying the father's Motion to Vacate and Set Aside the Ex Parte Order ("the motion to vacate"); the superior court did not have jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA")[1]; the superior court erred by imposing sanctions for the father's failure to appear for his deposition; and there was insufficient evidence to support the final order. For the following reasons, we reverse and remand with direction.

When reviewing an order in a child custody case, we view the evidence in the light most favorable to the trial court's decision. We will not set aside the trial court's factual findings if there is any evidence to support them, and we defer to the trial court's credibility determinations. We review de novo, however, the legal conclusions the trial court draws from the facts.[2]

So viewed, the record shows that during their marriage, the mother and father resided in Connecticut with the three children, all of whom were born in that State. On July 12 2017, the father commenced a custody action in Connecticut seeking sole legal and physical custody of the children. The mother then filed for divorce on August 1, 2017, and after the two matters were consolidated, the Connecticut court entered an order on September 7, 2017, approving a pendent lite agreement between the mother and father. Therein, the parties agreed that the parents would have joint legal custody of the children, but the mother would have sole physical custody, and she and the children would relocate to Georgia to live. The agreement also contemplated that the father would have reasonable visitation rights. The mother and children moved to Georgia, and after conciliation efforts failed, in November 2017 and April 2018, the father sought emergency relief in Connecticut to modify custody. In April 2018, the Connecticut court held a hearing, [3] in which it dismissed the father's custody application and denied the father's motion to modify temporary custody; on November 26, 2018, the Connecticut court entered an order excluding the mother's expert witness in the divorce action and finding that it "has jurisdiction under UCCJEA over the minor children who are residing in Georgia."

The mother and father's Connecticut divorce trial commenced on May 13, 2019, and was scheduled to continue on August 9 and 12, 2019. On July 27, 2019, however, the mother died of natural causes in Georgia. The very next day, the mother's Connecticut attorney filed a suggestion of death in the divorce action, prompting the father to file in Connecticut an "Application for Emergency Ex Parte Order of Custody" on July 29, 2019. The father then flew to Georgia to retrieve his children.

While the father was waiting at the White County Sheriff's office for the grandparents to bring the children to him, the grandparents (or their counsel or both) were at the superior court obtaining an ex parte emergency temporary custody order, having alleged that the father was abusive; the mother was found dead in the parent's driveway under "mysterious circumstances"; the "abusive" father was the beneficiary of a $1 million life insurance policy on the mother; the father had failed to exercise his right to visit the children in the two years they had resided in Georgia; the father was the subject of a family violence order of protection issued by the Connecticut court as a result of abusing his late wife; the father was in Georgia seeking to take the children with him to Connecticut; and the father had abused the mother in front of the children.[4] Before the grandparents had filed their petition seeking ex parte emergency custody, the superior court granted the grandparents temporary custody of the children and enjoined the father from "coming about" the grandparents or the children.[5] That same day - July 31, 2019 - at 2:41 p.m., the grandparents simultaneously filed the ex parte emergency petition for temporary custody ("the ex parte petition"), the signed ex parte order, and an amendment to the ex parte petition changing the style of the case from "In the Interest of J. R., D. R., and A. R." to "Nelson and Denise Wilkinson v. Joseph Richello," purporting to add the father as a party respondent. The grandparents did not seek leave of court to amend the petition, nor did they ever serve the father with either the ex parte petition or the July 31, 2019 amendment.[6]

Despite not having been served, on August 5, 2019, the father filed his motion to vacate on the basis that the superior court lacked jurisdiction under the UCCJEA and that there was a pending divorce case in the Connecticut court, which retained jurisdiction.[7] The father attached to his motion to vacate an affidavit of his Connecticut attorney Claire DeVidas, who averred that the trial in the parties' divorce action in Connecticut had already begun and was scheduled to recommence on August 9, 2019. According to DeVidas, immediately following the mother's death, the father had filed in the Connecticut action an application for emergency ex parte order of custody, and the matter was scheduled to be heard on August 1, 2019.

The grandparents filed a response to the motion to vacate, alleging that the father intentionally omitted the fact that on August 1, 2019, the Connecticut court "rejected, denied[, ] and dismissed" the father's July 29, 2019 application for an emergency ex parte order, and "[u]pon information and belief, . . . the Connecticut [c]ourt" also "specifically informed and expressly stated to the [father] that [it] would exercise no jurisdiction over the issue of custody of the children and that all litigation involving custody of the children would have to take place in the State of Georgia."[8]

On August 14, 2019, the grandparents filed their second amendment to the ex parte petition, adding a claim for grandparent custody and alleging that the mother's death "may have been the result of a homicide and the father is the only person with known motives for the death." On August 23, 2019, the superior court denied the father's motion to vacate and reserved all issues of custody and jurisdiction until both parties presented their cases at the September 10, 2019 hearing. There is no evidence in the record that the September 10, 2019 hearing ever took place or was continued. Instead, on September 5, 2019, the grandparents filed their third amendment to the ex parte petition, clarifying that the father visited with the children in Connecticut in September 2017 at the grandparents' home for two hours the same month, and in Connecticut on December 12, 2017. On September 13 and October 2, 2019, the father filed his responses to the second and third amendments to the ex parte petition, respectively. Then, on October 15, 2019, the parties filed a joint motion for continuance from an October 15 calendar on the basis that discovery was ongoing and that the case was not ready to proceed. There is no agreement to extend the ex parte order in the record.

By notice dated September 30, 2019, the grandparents scheduled the father's deposition to take place at his attorney's offices on November 22, 2019. Prior to the date of the deposition, the father's then-counsel filed a motion to withdraw, which was not granted until November 27 2019. The day before the father's scheduled deposition, his new attorney contacted the grandparents' counsel and informed him via voice mail that the father would not be attending the deposition the following day. Nevertheless, the grandparents' counsel and the father's original attorney appeared at the deposition location; the father did not appear. No further efforts to reschedule the deposition appear in the record. Instead, on December 13, 2019, the grandparents moved for the imposition of sanctions based on the father's failure to appear at the deposition, seeking an order that "the facts claimed by the [grandparents] shall be taken to be established" and that the father would be prohibited from opposing their claims or introducing evidence regarding custody.[9]

Following a hearing, the superior court entered an order on February 18, 2020, granting the grandparents' motion and entering sanctions against the father for his "wil[]ful and wanton refusal and failure to attend his deposition" and ordering that

the facts claimed by the [grandparents] shall be taken to be established for purposes of this action[, ] and the [father] is hereby prohibited from opposing the [grandparents'] claims for immediate, temporary[, ] and permanent legal and physical custody of the minor children . . ., and the [father] is hereby prohibited from introducing matters in evidence in opposition to the [grandparents'] claims for . . . custody . . .[, ] and the [father] is further hereby prohibited from introducing any evidence or matters in evidence supporting any of his
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT